Central Administrative Tribunal - Delhi
Yusuf Khan vs Bharat Sanchar Nigam Ltd on 21 November, 2024
1
C-3/Item-37 OA-2151/2016
Central Administrative Tribunal
Principal Bench, New Delhi
O.A./2151/2016
Reserved on: 16.10.2024
Pronounced on: 21.11.2024
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
Yusuf Khan
S/o Mr. M.A. Khan
R/o House No.4, Jia Sarai
Hauz Khas, New Delhi-110016
Aged about 34 years
(presently working as Junior Telecom Officer) ...Applicant
(Through Shri Ajesh Luthra, Advocate)
VERSUS
1. Bharat Sanchar Nigam Limited,
Through its Chairman-cum-Managing Director
4th Floor, Bharat Sanchar Bhawan
Janpath, New Delhi-110001
2. Assistant General Manager (Recruitment-II),
Recruitment Section, BSNL,
Room No.223, Eastern Court
Janpath, New Delhi-110001 ...Respondents
(Through Shri Arpit Shukla, Advocate)
ORDER
Hon'ble Dr.Chhabilendra Roul, Member (A):-
The applicant, while working as Junior Telecom Officer in the respondent department - BSNL, appeared in a Limited Departmental Competitive Examination (LDCE) conducted for the post of Sub-Divisional Engineer 2 C-3/Item-37 OA-2151/2016 (Telecom). In the said examination, in the OMR sheet provided to the applicant, he was subjected to bubble set 'C' in the question paper but inadvertently, he bubbled 'D' instead of 'C' while bubbling the OMR sheet. However, he has transcribed according to question paper set 'C' in the relevant space provided in the same OMR sheet. A copy of the OMR sheet is placed at page 30 of the OA (Annexure A-
1). Accordingly, the OMR sheet had been evaluated on the basis of questions of set 'D' and was awarded only 8.84 marks. It is the case of the applicant that after evaluating the answer keys provided by the respondents themselves with respect to question paper of set "C", the applicant had calculated his score as 86.99 marks which is above the last selected candidates. Therefore, he submits that his OMR sheet ought to have been evaluated based on question set "C". Agitating his claim, the applicant preferred a representation on 25.05.2016 (Annexure A-8) placed at Page 35 of the OA. The same has been rejected by the respondents on 02.06.2016 (Annexure A-1). Aggrieved by the same, applicant approached this Tribunal seeking the following reliefs:-
a) Quash and set aside the impugned order dated02/06/2016 placed at Annexure A/1 above and
b) Direct the respondents to correctly evaluate the OMR answer sheet of the applicant applying the answer key of set 'C' of the question paper and 3 C-3/Item-37 OA-2151/2016
c) Further consider and promote the applicant to the post of Sub-Divisional Engineer (Telecom) on the basis of instant LDCE with all consequential benefits.
d) If need so arises towards grant of either or more progress made above, the respondents be directed to revise the results accordingly
e) Award costs of the proceedings; and
f) Pass any order/relief/direction(s) as this Hon'ble Tribunal may deem fit and proper in the interests of justice in favour of the applicant."
2. While issuing notice on 28.06.2016, the interim protection was extended to the applicant by directing the respondents to keep one post of Sub-Divisional Engineer (Telecom) vacant for a period of two weeks. This interim protection has been extended from time to time and is in operation till date.
3. To support the cause of the applicant, learned counsel for the applicant draws attention to OMR Sheet which clearly indicates that however, he bubbled "D", the applicant has physically written 'C' under the column/space provided in form of square to confirm that he was provided question paper set 'C'. He further submits that this was an inadvertent mistake on behalf of the applicant and thus the applicant should not be deprived of the said opportunity. He submits that there was no malpractice and misconduct alleged against the applicant as the mistake was inconsequential in nature and did not has any substantive effect and the same could be ignored. He further submits that in light of the OMR sheet provided 4 C-3/Item-37 OA-2151/2016 by the respondents on the basis of Set "C" question paper, the applicant's merit would be above the cut-off and the merit should not be compromised, rather it should be respected and the OMR sheet of the applicant should be correctly evaluated accordingly.
4. Learned counsel for the applicant further argues that in the instructions provided in the OMR sheet itself, there was no such instruction that would render the applicant's answer sheet/OMR sheet as nullified.
5. Drawing attention to the OMR sheet placed at Page 36 of the OA, particularly instruction No. 10, learned counsel for the applicant submits that "Incomplete and incorrect entries may render your Answer Sheet invalid". Therefore, he submits that the said provision itself incorporates "MAY". Therefore, it was not mandatory but only directory in nature. Further, he confirms that the said infirmity may render the answer sheet as invalid and in the present facts, if the answer sheet has not been rendered as invalid as it has been evaluated by the respondents themselves on the basis of question paper Set "D".
6. Learned counsel for the applicant submits that there were certain developments during the pendency of the OA. He relies upon the decision of the Hon'ble High Court of Gujarat at Ahmedabad dated 24.06.2014 in Special Civil 5 C-3/Item-37 OA-2151/2016 Application No. 8168/2014 alongwith the present OA and various decisions of the Hon'ble High Court of Delhi. To strengthen his arguments, by drawing attention to the decision of the Hon'ble High Court of Delhi in WP (C) No. 4829/2017 in the matter of Union of India &Ors. Vs. Sumit Kumar dated 10.08.2017, he states that there were certain instructions as prescribed vide Para 5 of the said decision, while in the present facts that there were no such instructions with respect to incorrect bubbling. Therefore, there was no violation of any instructions. Further, vide Para 12 of the said decision of the Hon'ble High Court of Delhi, referring to the decisions of Hon'ble High Court of Andhra Pradesh and the Hon'ble High Court of Delhi, has distinguished that non-substantive and non-material irregularities should be ignored. Vide Para 13 of the said decision in an identical case where with respect to Roll number, the applicant therein had incorrectly bubbled, the Hon'ble High Court of Punjab & Haryana had disregarded the mistake. The Hon'ble High Court of Delhi in the said WP (C) No. 4829/2017 vide para 21 has held as under:-
"21. Thus, it is clear to us that not every omission committed by a candidate would have the consequence of his answer sheet being rejected, or being awarded „zero‟ marks. It would depend on the nature of the omission committed by the candidate. The candidates for the examination in question are mere school pass-outs. If there has been a failure on the part of a candidate to fill up the column relating to the medium/ language in which the answer sheet has been written, the same is not such a significant omission, as could not have been remedied 6 C-3/Item-37 OA-2151/2016 by the personnel of the Petitioner itself. All that they had to do was, to turn over a couple of pages and see for themselves the language in which the answer sheet had been answered."
7. Learned counsel for the applicant further relies upon a judgment of the Hon'ble High Court of Delhi in the matter of Union of India and Ors. Vs. Avinash Chandra Singh and Ors. in WP (C) No. 6086/2017 decided on 29.8.2017, which was subsequently confirmed by the Hon'ble Apex Court in its decision dated 02.11.2019 vide SLP (Civil) Diary No (s) 18743/2018. Moreover, attention was also drawn to the decision of Hon'ble High Court of Judicature at Allahabad in the matter of Satveer Singh Vs. Union of India dated 13.09.2019 and decision of Hon'ble Telangana High Court in the matter of Smt.Sujatha Cheruku and Another Vs. The State of Telangana dated 30.07.2017. Para 11 of the decision in Smt Sujatha Cheruku (supra) is reproduced as under:-
"11. But however, we are of the opinion that when the process of direct recruitment to various posts in various civil services of the Central Government is undertaken, the primary concern is to pick up the most meritorious candidate from the respective segments for selection. Picking up the most meritorious candidate would also additionally sub- serve the larger public interest apart from complying with the principle of equality contained under Article 14 and equal opportunity contained in Article 16 of our Constitution. The very purpose of undertaking direct recruitment is to ensure the best of the most talented are picked up for public employment. By appointing such meritorious candidate, the efficiency of public services would attain the necessary standards which are set for that purpose. Therefore, an element of flexibility to ignore non- substantive errors committed by a candidate would only enhance and promote the larger public interest.7
C-3/Item-37 OA-2151/2016 Hence, if, there are any such similar cases as that of the first respondent herein, are lying, answer sheets of such candidates irrespective of the fact whether one has approached one High Court or the other should be undertaken for evaluation. The principle underlying is that the litigative ability and the free access to candidates is available to only few candidates and the financial ability to pay for the litigation expenses cannot act as a premium for securing justice. Justice to all and that too the inexpensive one is the motto of our Courts. All the unemployed young persons may not have adequate financial support to carry on with litigation. It is not the petitioner who has approached the Court alone who might get the ultimate relief, but it might be the one which may not have the necessary wherewithal to approach the Court who should be getting the actual relief, if he is better candidate than the one who has approached the Court. But, that would depend upon the relative merit of the candidates. In fact, this is the very same principle applied while dealing with the litigation relating to admission to medical colleges, engineering colleges and other higher educational institutions is pursued by the Courts. Therefore, a similar approach is called for even in the matter of public employment. The writ petition is accordingly dismissed, but however, without costs.
xxx xxx xxx
12. .........An opportunity comes once in a life time to many persons. That opportunity cannot be taken away by taking the aid of an un-intentional mistake committed by such person in life. All the examinations conducted for employment or for seats in Colleges are competitive and that competition cannot be eliminated by virtue of mistakes committed by the candidates unintentionally and not related to the merit of the candidate. One has to see the intention behind the mistake when it can be discerned. The mistake relating to the booklet number, question number, hall ticket number and the personal particulars of the candidate will not have any bearing on the substantive merit of the candidate. In the examination hall, where a competitive examination is held, the mental condition of the candidate would be different and it is prone to committing mistakes. Unless those mistakes are related to the merit of the candidate, to the extent they can be condoned can be condoned and an opportunity should be given to the candidate to compete along with others. In the above cases, the candidates admittedly committed a mistake in bubbling the relevant hall ticket number/roll number, though in the boxes provided they have correctly written the number. Thus, the answer scripts can be easily identified, though it cannot be processed by the computer. Even if it involves some manual error, such type of answer scripts can be 8 C-3/Item-37 OA-2151/2016 valued as it does not relate to the merit of the candidate.
In that view of the matter, I am of the opinion that these Writ Petitions are liable to be allowed and they are, accordingly, allowed. The second respondent is directed to evaluate the answer scripts of the petitioners and depending on the marks obtained by them, shall take further action. There shall be no order as to costs."
8. To conclude his arguments, learned counsel for the applicant, drawing attention to his rejoinder, submits that since the mistake of the applicant was inconsequential, therefore, the same may be ignored and the applicant may be granted relief relying upon the decisions of the Hon'ble Apex Court and Hon'ble High Courts.
9. Learned counsel for the respondents, Mr. Arpit Shukla vehemently opposes the present OA and submits that answer sheet of the applicant was an OMR sheet which could be evaluated by optical mark reader, in which, after the OMR is placed before the reader, result could be obtained. In the present circumstances, as the applicant had bubbled "D" with respect to question paper set provided to him, the reader has evaluated his answer sheet on the basis of Set "D". He states that irrespective of the fact if the sheet again placed before the reader, it would evaluate the same on basis of bubbled made by the applicant only i.e Set "D". He submits that in the present facts, the OMR sheet cannot be evaluated manually as per the scheme of the examination and as per the Rules. To 9 C-3/Item-37 OA-2151/2016 strengthen his arguments, he states that in the present facts, Limited Departmental Competitive Examination is not once a life time opportunity and the applicant will have an opportunity in future also.
10. Learned counsel for the respondents places reliance upon various judgments that may include decision of the Hon'ble Apex Court in WP(C) No. 355/2014 wherein in an identical facts, the Hon'ble Apex Court has not interfered in the matter. Paras 6 & 12 of the said decisions are reproduced as hereinbelow :-
"6. I am not inclined to, in exercise of writ jurisdiction under Article 226 of the Constitution, grant the relief sought by the petitioner simply for the reason that the examination in which the petitioner had appeared is not a once in a lifetime examination in which the petitioner has lost a chance to appear for ever. It is not in dispute that the said examination is held twice a year. If the petitioner is meritorious, there should not be any doubt in his mind of his ability to clear the same. When, (a) the grievance with which the petition is filed is attributable to the petitioner himself; and,
(b) the injury is not irreparable and the petitioner can regain what he has lost owing to his own mistake, the question of invoking Article 226, in my opinion, does not arise.
xxx xxx xxx xxx
12. The scheme of the examination, which remains unchallenged, having provided for the marking to be done by Optical Mark Reader, the petitioner cannot also demand manual checking of answer sheet. There is thus no merit in the last contention also."
11. Mr. Arpit Shukla, learned counsel further states that in each of the judgments relied upon by the applicant, there were direct recruitment selections and in light of the 10 C-3/Item-37 OA-2151/2016 fact that there was once life time opportunity in those judgments, the relief was granted, however, the present applicant is not similarly situated. To distinguish the judgments relied upon by the applicant, he states as under:-
(i) With respect to decision of Hon'ble High Court of Delhi in the matter of Union of India Vs. Sumit Kumar in WP (C) No. 4829/2017 he submits that the facts before the Hon'ble High Court were that the applicant therein did not mention the medium in which he was taking the examination in the cover sheet of the answer sheet and it was not a case of OMR sheet as well. Therefore, the said facts are not applicable in the present case.
(ii) With respect to the decision of the Hon'ble Telangana High Court in the matter of Smt. Sujatha Cheruku and Another Vs. The State of Telangana, W.P. No.26845/2017, he submits that in that case there was a mistake of the invigilator and, therefore, the applicant was given the benefit of the mistake committed by the invigilator. Hence, the same is also not applicable in the present matter.
12. To strengthen the arguments of the respondents, learned counsel for the respondents relies upon the decision of the Hon'ble High Court of Allahabad in the 11 C-3/Item-37 OA-2151/2016 matter of Santosh Kumar Pandey Vs. State of UP and Ors. in Writ Petition No. 66487/2015 decided on 22.12.2015. Paras 13, 16, 24 and 26 thereof are reproduced herein below:-
"13. This Court is not at all disputing the proposition of law that has been mentioned therein that the object of examination undoubtedly is to see and ensure that the best of the candidate is there on being selected. The larger issue that is engaging the attention of this Court is as to whether mistake in question that has admittedly occurred, same is liable to be condoned or not and what is the purpose and objective of such instructions that has been issued by U.P, Public Service Commission. Such an issue has been dealt with by the Apex Court in the case of Karnataka Public Service Commission v. B.M. Vijaya Shankar MANU/SC/0178/1992: (1992) 2 SCC 206, wherein a categorical view has been taken that a candidate should abide by such instructions and the object of instructions is to minimise any possibility of chance of any abuse and larger public interest demands insistence of observance of instruction rather than its breach.
16. Apex Court once again in the case of Secretary Tamil Nadu Public Service Commission v. A.B. Natrajan and others MANU/SC/0614/2014: (2014) 14 SCC 95 has clearly mentioned that such instructions are binding and has to be adhered to. It has also been mentioned that entire object behind giving code number etc. would be frustrated if all these things are permitted or tolerated.
24. Petitioner is aspiring to become a Assistant Prosecution Officer. Petitioner, in the present case, in the OMR sheet has not only mentioned the wrong series but even at the point of time when bubbling has been done, option D has been mentioned. Even in the attendance-sheet, similar is the situation. Whenever there is a conflict in between private interest and public interest, private interest will always have to give way to public interest i.e. of ensuring free/fair/transparent examination with zero humane instructions. Even in cases of humane error, once instruction has been breached, the consequences provided for has to follow, as candidate is self responsible for the situation and uncertainty should not be attached to the selection process.
26. Once such is the factual situation and the law on the subject is clear that instructions in question have to be interpreted in the context of object for which it has been framed and here, in this era of 12 C-3/Item-37 OA-2151/2016 computerization, once petitioner has proceeded not to comply with the instructions and has committed error not at one place but at two places in the OMR sheet and same mistake has been repeated in attendance-sheet, then he has to blame himself and same cannot be dubbed as humane error."
13. Further, learned counsel for the respondents relies upon the decision of the Hon'ble Apex Court in the matter of Secretary, Tamil Nadu Public Service Commission Vs. A. B. Natarajan and Ors., (2014) 14 SCC 95 wherein it was held that as per the mandatory instructions, the applicant had chosen to violate the instructions, particularly, instructions placed at Nos. 5, 10 & 12 which were read together. He submits that a conjoined reading of three instructions would be that in case, applicant did not fill the space provided for bubbling correctly, the answer sheet would be rendered invalid and would not be evaluated." Paras 16 to 18 of the said decision are reproduced herein below:-
"16. In the instant case, it is an admitted fact that there were serious violations of the instructions given to the candidates while answering the questions. Although all these details were placed before the learned Single Judge, the learned Single Judge did not give importance to these irregularities and dismissed the petitions, but when the appeals were filed, in our opinion, the Division Bench of the High Court rightly understood the importance of such irregularities and allowed the appeals by setting aside the selection of the candidates who had committed such irregularities while writing their answer books. We are of the view that if such a strict view is not taken by a constitutional body which has been entrusted with the work of selecting best candidates, the entire purpose behind having the Commission or any other such body for examining merit of candidates would be frustrated. We are, therefore, of the view that the appellate Court was absolutely justified in allowing the appeals and by holding that all those candidates who had committed material irregularities could not be declared selected.13
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17. Several allegations had been made with regard to the procedural aspect. It had been submitted that all the selected candidates had not been joined as respondents and even the State of Tamil Nadu had not been joined as a respondent initially. Initially only one petition had been filed when the result had not been declared and it was also not possible for the petitioners to join all selected candidates. Subsequently, an advertisement had been given in the newspapers giving indication about the pendency of the petition so as to enable the selected candidates to appear before the Court. Moreover, the appointment letters gave an indication of the fact that a litigation challenging their appointment was pending in the High Court. In spite of the aforesaid fact being stated in the appointment order and the advertisement, if selected candidates did not bother to appear before the Court, by no stretch of imagination, it can be said that the selected candidates were not given an opportunity to represent their case. We, therefore, do not find any substance in the allegations with regard to non-joinder of selected candidates or even the State of Tamil Nadu.
18. The candidates who had applied for Class-I post, if selected, were to be Class-I Officers of the State of Tamil Nadu. Not following the instructions given to them while appearing in the examination, which had been conducted for their selection, would either mean that they were so careless that they did not read or bother about the instructions to be followed or they wanted to give some indication to the examiner about their identity. In either case, such a candidate can not be selected. A candidate, who is so careless that he does not bother about his own interest, cannot be expected to become a good officer. Interest of the candidate is to get through the examination and for that purpose he has to follow the instructions. By not following the instructions, he does not take care of his own interest. So, if he has written the answer books carelessly without bothering about the instructions given to him, he is a careless person who must not be appointed as an officer and if he has done it deliberately, then also he should not be appointed as an officer because one who plans such illegalities even before joining his service, cannot be expected to become a fair and straightforward officer. So, in either case, such a candidate cannot be selected for appointment as an officer and that too a Class-I Officer of any State."
14. Learned counsel for the respondents also relies upon a latest decision of the Hon'ble Apex Court in the matter of Dr. NTR University of Health Sciences Vs. Dr. Yerra Trinadh & Ors. in Civil Appeal No. 8038/2022 decided on 04.11.2022, wherein the Hon'ble Apex Court has held that re-evaluation could be permitted if it was not provided in the scheme of the examination. Paras 8.1, 9 and 10 are reproduced herein below:-
14
C-3/Item-37 OA-2151/2016 "8.1 In the case of Pramod Kumar Srivastava (supra), it is observed and held by this Court that in absence of any provision for re-evaluation in the relevant rules, examinees have no right to claim or demand re- evaluation. In paragraphs 7 & 8, it is observed and held as under:
"7. We have heard the appellant (writ petitioner) in person and learned counsel for the respondents at considerable length. The main question which arises for consideration is whether the learned Single Judge was justified in directing re-evaluation of the answer-book of the appellant in General Science paper. Under the relevant rules of the Commission, there is no provision wherein a candidate may be entitled to ask for re- evaluation of his answer-book. There is a provision for scrutiny only wherein the answer-books are seen for the purpose of checking whether all the answers given by a candidate have been examined and whether there has been any mistake in the totalling of marks of each question and noting them correctly on the first cover page of the answer-book. There is no dispute that after scrutiny no mistake was found in the marks awarded to the appellant in the General Science paper. In the absence of any provision for re-evaluation of answer-books in the relevant rules, no candidate in an examination has got any right whatsoever to claim or ask for re-evaluation of his marks. This question was examined in considerable detail in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh kumar Sheth [(1984) 4 SCC 27: AIR 1984 SC 1543]. In this case, the relevant rules provided for verification (scrutiny of marks) on an application made to that effect by a candidate. Some of the students filed writ petitions praying that they may be allowed to inspect the answer-
books and the Board be directed to conduct re-evaluation of such of the answer-books as the petitioners may demand after inspection. The High Court held that the rule providing for verification of marks gave an implied power to the examinees to demand a disclosure and inspection and also to seek re-evaluation of the answer- books. The judgment of the High Court was set aside and it was held that in absence of a specific provision conferring a right upon an examinee to have his answer- books re-evaluated, no such direction can be issued. There is no dispute that under the relevant rule of the Commission there is no provision entitling a candidate to have his answer-books re-evaluated. In such a situation, the prayer made by the appellant in the writ petition was wholly untenable and the learned Single Judge had clearly erred in having the answer-book of the appellant re-evaluated.
8. Adopting such a course as was done by the learned Single Judge will give rise to practical problems. Many candidates may like to take a chance and pray for re- evaluation of their answer-books. Naturally, the Court will pass orders on different dates as and when writ petitions are filed. The Commission will have to then send the copies of individual candidates to examiners for re- 15
C-3/Item-37 OA-2151/2016 evaluation which is bound to take time. The examination conducted by the Commission being a competitive examination, the declaration of final result will thus be unduly delayed and the vacancies will remain unfilled for a long time. What will happen if a candidate secures lesser marks in re-evaluation? He may come forward with a plea that the marks as originally awarded to him may be taken into consideration. The absence of clear rules on the subject may throw many problems and in the larger interest, they must be avoided." 8.2 In the case of Ran Vijay Singh v. State of U.P., (2018) 2 SCC 357, in paragraph 32, it is observed and held as under:
"32. It is rather unfortunate that despite several decisions of this Court, some of which have been discussed above, there is interference by the courts in the result of examinations. This places the examination authorities in an unenviable position where they are under scrutiny and not the candidates. Additionally, a massive and sometimes prolonged examination exercise concludes with an air of uncertainty. While there is no doubt that candidates put in a tremendous effort in preparing for an examination, it must not be forgotten that even the examination authorities put in equally great efforts to successfully conduct an examination. The enormity of the task might reveal some lapse at a later stage, but the court must consider the internal checks and balances put in place by the examination authorities before interfering with the efforts put in by the candidates who have successfully participated in the examination and the examination authorities. The present appeals are a classic example of the consequence of such interference where there is no finality to the result of the examinations even after a lapse of eight years. Apart from the examination authorities even the candidates are left wondering about the certainty or otherwise of the result of the examination -- whether they have passed or not; whether their result will be approved or disapproved by the court; whether they will get admission in a college or university or not; and whether they will get recruited or not. This unsatisfactory situation does not work to anybody's advantage and such a state of uncertainty results in confusion being worse confounded. The overall and larger impact of all this is that public interest suffers." 8.3 In the case of Vikesh Kumar Gupta (supra), after considering catena of decisions on scope of judicial review with regard to re-evaluation of the answer sheets, it is observed and held that the court should not re- evaluate or scrutinise the answer sheets of a candidate as it has no expertise in the matter and the academic matters are best left to academics.
9. Applying the law laid down by this Court in the aforesaid decisions to the facts and circumstances of the case on hand, we are of the opinion that the High Court was not at all justified in calling the record of the answer scripts and then to satisfy whether there was a need for re- evaluation or not. As reported, the High Courts are calling for the answer scripts/sheets for satisfying whether there is a need for re-evaluation or 16 C-3/Item-37 OA-2151/2016 not and thereafter orders/directs re-evaluation, which is wholly impermissible. Such a practice of calling for answer scripts/answer sheets and thereafter to order re- evaluation and that too in absence of any specific provision in the relevant rules for re-evaluation and that too while exercising powers under Article 226 of the Constitution of India is disapproved.
10. Even otherwise, in the present case, the University has adopted the digital evaluation which has been subsequently modified/improved and the deficiencies have been removed, which has now been approved by the High Court in the recent decision in Writ Petition No. 15865/2022. The digital evaluation process is reported to be scrupulously followed by the University. From the affidavit filed on behalf of the University on use of digital evaluation, it appears that all precautions are being taken to have the accurate evaluation digitally. There are specific instructions and trainings to the examiners while conducting digital evaluation. It is reported that the faculty has utilised the updated software by using the tools and annotations incorporated in the software adopted by the University. In any case, in absence of any regulation for re-evaluation of the answer scripts, either in the MCI rules or in the University Rules, the High Court is not justified in ordering re-evaluation of the answer scripts. As observed and held by this Court in the case of Ran Vijay Singh (supra) that sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheet."
15. Learned counsel for the respondents submits that the date of the examination was 21.06.2015 and a carbon copy of the OMR sheet was provided to the applicant on the same day. Therefore, the applicant was fully aware of the mistake that occurred in the OMR sheet. Thereafter, result of the examination was announced on 21.05.2016 and he preferred a representation on 25.05.2016 i.e. subsequent of the declaration of the result. Therefore, the present OA deserves to be dismissed.
16. In rejoinder, Mr. Ajesh Luthra, learned counsel for the applicant submits that each of the judgments relied 17 C-3/Item-37 OA-2151/2016 upon by the respondents is prior to 2015, and post 2015, there are certain decisions of the Hon'ble High Courts of Telangana and Delhi in the matters of Smt. Sujatha Cheruku and Sumit Kumar (Supra) respectively, wherein, the Hon'ble Courts, while extending the benefits to the applicants therein, have distinguished between consequential and inconsequential and/or significant and insignificant mistakes. He reiterates that in the present facts, the mistake of the applicant is insignificant and should have been ignored. He further states that while deciding the issue at stake in the matter of Union Of India through its Secretary & Ors. Vs. Rupesh Kumar Jha & Ors. in WP (C) No. 12354/2023 and batch decided on 29.02.2024, the Hon'ble High Court of Delhi has considered the case of the applicant and decided in favour of the applicant. He clarified that the applicant had not only sought re-evaluation of the OMR sheet but also to correct evaluation on the basis of question paper which was actually provided to the applicant i.e. Set "C" as he had answered to the same i.e. Set "C". With respect to the fact that the applicant did not prefer his representation immediately after the copy of OMR Sheet was provided to him, the applicant approached this Tribunal well within the time and the Hon'ble Tribunal also kept one post vacant as interim protection was extended to the applicant on 28.06.2016.
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17. We have heard both the counsels carefully and gone through the records of the case thoroughly. Here the basic issue is whether the mistakes committed by the applicant in the OMR answer sheet are consequential or inconsequential.
Analysis
18. Point no.7 in the Admit Card reads:
"The entries of the OMR sheets should be filled-up very carefully as no cutting/erasing is allowed not will the sheet be replaced. Roll no./Paper Code/Question Booklet Set etc. is to be darkened carefully. Even at the time of making their answers (by darkening) in the OMR sheet, the candidate should do marking and darkening of the circles very carefully as the answer sheet cannot be changed under any circumstances."
Point No.10 on OMR sheet reads:
"Mark all relevant information. Your answer sheet will be evaluated through electronic scanning process. Incomplete and incorrect entries may render your answer sheet invalid."
Instructions on Question Paper read as follows:
"Point No.1: "Candidate should read and strictly observe the instructions printed in the question booklet as well as instructions printed on the OMR answer sheet."
Point No.5: "The candidate is required to choose the most appropriate answer from the choices given. Since OMR answer sheet may be evaluated by special scanning machines, each bubble therein should be darkened completely 19 C-3/Item-37 OA-2151/2016 using black/blue ball point pen. Incomplete darkening of the bubbles will be taken as invalid answer."
19. From the above, it is clear that the candidates were, time and again, instructed to fill up the OMR sheet carefully. We agree with the respondents (para 4 of the counter affidavit) that the ratio of judgment dated 4.08.2016 by Hon'ble Gujarat High Court in Gujarat Secondary and Higher Secondary Education Board Vs. Mihir Satishbhai Pamnani and ors., LPA No.646/2016 that when the candidate violates the instructions, which govern the field of examination, no claim can be made for award of marks for the answers which are not in conformity with the instructions.
20. The contention of the learned counsel for the applicant that the instructions like "incomplete and incorrect entries may render your answer sheet invalid" use word 'may' and it should not be treated as 'shall' or mandatory. If this contention of the learned counsel for the applicant is accepted, then the entire edifice of the instructions will collapse. Then it would be open to the individual candidates to observe the instructions as per their voluntary choice. Consequently, there will be no instructions which will guide the candidates and under which the conduct of the examination will take place. The 20 C-3/Item-37 OA-2151/2016 learned counsel has relied on the following judgments in support of his contentions:
(i) Union of India and ors. Vs. Sumit
Kumar (supra) - Delhi High Court
(ii) Union of India and ors. Vs. Avinash
Chandra Singh (supra) - Delhi High
Court
(iii) Satveer Singh Vs. Union of India
(supra) - Allahabad High Court
(iv) Smt. Sujatha Cheruku Vs. The State
of Telangana (supra) - High Court of
Telangana
(v) Union of India through its Secretary
Vs. Rupesh Kumar Jha (supra) -
High Court of Delhi
21. In Sumit Kumar (supra), the Hon'ble High Court of Delhi has distinguished that non-substantive and non- material irregularities should be ignored. The facts of Sumit Kumar (supra) case are at variance with those obtaining in the instant case. In Sumit Kumar case, the candidate did not mention the language in which he was answering the questions. There it was not OMR sheet. Moreover, the evaluation might have been through manual mode. Moreover, the mistake by the candidate in the 21 C-3/Item-37 OA-2151/2016 instant case is quite consequential for evaluation. Such mistake or irregularity is substantive and material to the evaluation of the answer sheets and hence conduct of the examination.
22. In Avinash Chandra (supra) case, again the irregularities or mistakes pertain to not marking the subject like "Civil and Structural", "Electrical" etc. on the opening sheet of the answer book. Again, the facts of this case are at variance with those in the case at hand. The mistakes in Avinash Chandra Singh (supra) case do not pertain to "OMR" sheet. What is fatal and consequential depends upon the contextual background of the mistakes. The Delhi High Court had relied on its previous judgment in Sumit Kumar (supra) and dismissed the petition by the respondents. We find that the facts and circumstances of that judgment are fairly distinguishable compared to present case and hence, the ratio of this judgment does not apply to the present case.
23. In Satveer Singh (supra) case, the candidate was initially declared selected and subsequently by manual examination it was found that the roll numbers were allegedly and incorrectly bubbled. The circumstances under which the authorities concerned re-examined such cases and manually checked the incorrect bubbled roll numbers have not been brought out in the case. Under 22 C-3/Item-37 OA-2151/2016 such circumstances, as well as when the facts and circumstances are at variance, no relevance could be placed on such judgment.
24. Again, the Telangana High Court has in Smt. Sujatha Cheruku (supra) case has talked about non-substantive terms. In the instant case, the error committed by the applicant was substantial and material for evaluating his OMR answer sheet. Hence, the ratio of the judgment in Smt. Sujatha Cheruku (supra) case is not applicable in the instant case.
25. In Rupesh Kumar Jha (supra) case, the irregularity committed by the applicants pertains to their non-signing the answer sheets. Their invigilator has countersigned the answer sheet and the candidates have signed the attendance sheet. The mistake of not signing the answer sheet by the applicants was considered non-material, non- consequential and non-fatal. Again, the scheme of examination in the present case made the irregularity of not properly bubbling the relevant space for question paper quite fatal, material and consequential. Accordingly, again because the facts and circumstances of the present case are at variance with those obtaining in Rupesh Kumar Jha (supra) case, the ratio of that judgment is not applicable in the instant case.
23
C-3/Item-37 OA-2151/2016
26. On the other hand, the learned counsel for the respondents has relied on the judgment of the High Court of Allahabad in Santosh Kumar Pandey (supra) where in the mistake committed by the candidate was exactly same (apart from additional irregularities) of not mentioning the correct question series in the OMR sheet. We do agree that the ratio of this judgment that instructions in question have to be interpreted in the context of object for which these have been framed. Here, the instructions to put correct question paper series is to effectively and correctly evaluate the OMR answer sheets. This position has been reiterated in Secretary, Tamil Nadu Public Service Commission (supra) and Dr. NTR University of Health Sciences (supra) as it has been fairly argued by the learned counsel for the respondents.
Conclusion
27. When the answer sheets are to be evaluated on the basis of entry in the OMR sheet, any wrong entry in any relevant space/column renders it not be evaluated. This is a significant consequence of the mistake committed by the applicant. Moreover, the consequential repercussion is that because of this mistake, if the OA is allowed, then the OMR sheet has to be evaluated afresh and manually. Both these steps will introduce new rules of the game in favour of the applicant. It would further entitle all such candidates 24 C-3/Item-37 OA-2151/2016 whose OMR answer sheets were not evaluated because of wrong posting of the code for the question paper in the OMR sheet. This was not as per the Scheme of the examination, which states that all answer sheets will be evaluated through machine mode. The mode of evaluation will be changed for the irresponsible mistake of the applicant. Such irresponsible and careless approach to a competitive examination does not warrant any concession to the applicant.
28. In view of the above, we find the OA lacks merit and hence is dismissed. No order as to costs.
All pending MAs, if any, are disposed of accordingly.
(Dr. Chhabilendra Roul) (Pratima K. Gupta)
Member (A) Member (J)
/dkm/